Yeatts v. Polygon Northwest Co.

“An error in failing to give a requested instruction ‘is harmless if there is little likelihood that the error affected the verdict.’” Summerfield v. OLCC, 366 Or 763, 781, 472 P3d 231 (2020) (quoting Ossanna, 365 Or at 219). “Conversely, an error in failing to give an instruction is prejudicial if it ‘probably created an erroneous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case.’” Id. (quoting Ossanna, 365 Or at 219).

Plaintiff appealed a judgment dismissing an action where he alleged liability against the defendant for personal injuries under the Employment Liability Law (ELL). Plaintiff assigned error to the trial court’s refusal to explain to the jury that the employer’s duty under the ELL is nondelegable. Plaintiff argued that that the Defendant, Polygon, had contractually retained a right to control the building and inspect the guardrails, which the Plaintiff fell and was injured from, based on agreed upon contract provisions. Polygon argued that they were not subject to the ELL because it did not have any control over the guardrails and the faulty guardrails were at the fault of the framing contractor, Wood Mechanix. “An error in failing to give a requested instruction ‘is harmless if there is little likelihood that the error affected the verdict.’” Summerfield v. OLCC, 366 Or 763, 781, 472 P3d 231 (2020) (quoting Ossanna, 365 Or at 219). “Conversely, an error in failing to give an instruction is prejudicial if it ‘probably created an erroneous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case.’” Id. (quoting Ossanna, 365 Or at 219). The Court ruled that in receiving jury instructions which explained the ELL nondelegable duty the jury could could have assigned responsibility to Wood Mechanix for some safety-related negligence that would have been assigned to Polygon. Therefore, the jury’s verdict could have been affected and leaving out the requested instruction was not harmless. Reversed and remanded.